Key Charge: FCC order requiring online posting of “political file” was arbitrary and capricious and in violation of the First Amendment, NAB says in filing with the U.S. Court of Appeals for the District of Columbia.
Impact: FCC Media Bureau Chief Bill Lake said in April, when the FCC approved the new rules, that the goal was to implement the new requirements in time for the 2012 election cycle, but the broadcasters' suit could delay that timetable.
By Paul Barbagallo
The National Association of Broadcasters filed suit against the Federal Communications Commission in federal appeals court to vacate the commission's order requiring television broadcasters to make available online all records detailing when political commercials air, in which markets, and how much each campaign paid for each ad ((NAB v. FCC, D.C. Cir., 12-1225, 05/21/2012).
In a petition for review filed late May 21 in the U.S. Court of Appeals for the District of Columbia, the broadcasters argued that the FCC's action infringes on their first Amendment free-speech rights, exceeds statutory authority, and is “arbitrary and capricious.”
“In the FCC order, the commission decided to adopt a requirement that all television broadcasters (but not their competitors in the video marketplace) publish political advertising-related information, including advertising rates the stations charge to political candidates and political 'issue advertisers,' on a government web site. The commission's changes to broadcasters' disclosure obligations and other operations, as well as other action taken in the FCC order, will directly and adversely impact NAB and the broadcasters whose interests it represents,” the group wrote in the two-page filing.
TV stations already are required by law to maintain such records, but only on paper. The requirement to post the “political file” online will apply initially only to station affiliates of the four largest U.S. networks in the top 50 designated market areas, which the FCC estimates will be 200 stations. The rest of the roughly 1,800 stations will have until July 1, 2014, to comply with the rules.
For the FCC, the order is part of an ongoing agency-wide effort to digitize records and to introduce more transparency in government.
Under Section 315 of the Communications Act, amended by the Bipartisan Campaign Reform Act of 2002, broadcasters are required to keep a “political file” reflecting all requests “made by or on behalf of a legally qualified candidate for public office” or that “communicates messages relating to any political matter of national importance, including a legally qualified candidate, any election to federal office, or a national legislative issue of public importance.”
Perhaps most important, the political file reveals how the television station responded to such requests--if a request was granted and, if so, the schedule of the times purchased, the times that the spots actually aired, the rates charged, the “classes” of time purchased, and whether a station granted any free time to a candidate.
Neither the Communications Act nor the Bipartisan Campaign Reform Act, however, give the FCC direction on whether these records could, or should, be posted online.
The Federal Election Commission already maintains online records on political advertising, but only “electioneering communications”--ads referring to candidates--and independent expenditures--ads advocating for the election or defeat of a candidate.
Generally, the information available on the FEC's website provides an overall look at how much money campaigns spend. The information available in broadcasters' political files is far more granular, and potentially more useful, but is more difficult to access because interested parties must travel to each TV station to inspect the documents.
One issue that is likely to emerge in court proceedings is which agency--the FCC or FEC--should oversee online records on political ads.
In a March filing with the FCC, the NAB said the Bipartisan Campaign Reform Act, widely known as McCain-Feingold, only permits the agency to “compile and maintain” information on its web site about electioneering communications, which are defined as televised issue advertising by corporations or unions that refers to a “clearly identified” federal candidate in the weeks before a primary or general election.
The FCC still regulates broadcasters' hard-copy political files. Currently, members of the public who want access to the records must go to each local TV station in person.
“The public file rules are a common-sense update by the FCC to move from paper to online access to public information in the digital age,” the spokesman said in an emailed statement. “The rules are consistent with Congress's directive to ensure public availability while providing cost-savings for broadcasters.”
Corie Wright, senior policy counsel for media activist group Free Press, said the lawsuit against the rule is nothing more than an attempt to “stall an important and overdue transparency initiative.”
“The FCC decision to put the political files online will bring broadcasters into the 21st century, and will make already public information more easily accessible to everyone,” Wright said in a statement. “The FCC made the right decision and is on firm legal ground.”
For the National Association of Broadcasters' petition, visit /uploadedFiles/Content/News/Legal_and_Business/Bloomberg_Law/Legal_Reports/052212_political_file_petition(1).pdf
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